High Court · 2012

Sunil Bajaj S'/o Shri Rawaldas Bajaj, aged about 35 years, R/o Maitri Nagar, Opposite Sundar Nagar, Raipur District, Raipur (CG)

1. Triyambak Sharma S/o Shri Mrityunjay Sharma, R/o Jr. MIG 162, Sector-3, Pt. Deen Upadhyay Dayal Nagar, Raipur, District Raipur (CG) (Driver & Owner of Santro Car

5. CG-04/H-3972)

2. Lombard General I.C.!.C.I. Insurance Company Limited, through - Branch Manager, Lalganga Shopping Mall, G.E. Road, Raipur (CG) Insurer of Santro Car No. CG- 04/H-3972) .Shri S.S. Rajput, counse! forthe appellant. None for respondent No.1. Shri Amrito Das, counsel for respondent No.2. (Passed on 5L.% /08/2012) The owner ofthe vehicle Tavera Car bearing registration No. CG- VH-7211 (the appellant herein) has preferred this appea! under Sectipn 173 of the Motor Vehicle Act, 1988 agalnst the dismissal of the claim petition by the llnd Additional Motor Accident Claims r ,.:!;"--c:«'s> y1.^^^ ^- -.i"--'^' ""^T.. "•"""• Tribunal, Raipur (for short 'the Tribunal') in Claim Case No.49/2008 vide order dated 24/10.2008. irief facts ofthe case are that on 13.06.2007 when the appeliant was golng to Sundarnagar from Lakhenagar by his vehicle avera Car bearing registration No.CG-04/H-7211 which was insured with Insurance Company, the same tims the respondent No.l/driver of the offending vehicle Santro Car bearing registration NO.CG-04/H-3972 dashed his vehicie from back side near Ashwani Nagar in a rash and negligent manner, as a result of which his vehicie got damaged. The mattsr was reported to the police station Azad Chowk and chailan was presented before the Judicial Magistrate First Ciass, Raipur (CG). Thereafter the applicant filed an application for compensation of Rs.29,857/- before the insurer of his vehicle for damages of his car and he received Rs.17,715/- from his insurer towards rspairs of his vehicle. Thereafter, the appiicant filed petition before the Tribunal agsinst the owner and insurer of offendina vehicle i.e., 01-3-04/H-3972 for remainini towards repairing of his car and Santro Car bearing registration amount of Rs.12,142/- Rs.10,000/- for mental agony. The Tribunal on a close scrutiny of the evidence, dismissec' the appellant's claim petition for Gompersation hotding that after receiving the awarried amount in full and final satisfaction from the insurer cf his car, he does not have any right to file another ,claim petition arising out of same accident, therefore, the claim petition filed by the applicant is not maintainable. Shri S.S. Rajput, learned counsel for the appetlant vehemently argued that the impugned award passed by the Tribunal erroneous and bad-in-law. He also argued that the Tribunat did not appreciate the evidence available on record In Its proper perspective and erroneously dismissed the claim petition. He further argued that the Tribunal miserabty failed to appreciate that the ciaim petition was maintalnable despite the fact 'appellant had received some amount of compensation from the Insurance Company of his car. H.e also argued that there is no ^^SS'sf^- bar under the law insation of has misquoted present an application for the remainim damage of thlrd party. The Tribuna! and mlsinterpreted judgment Per contra, Shri AmriSo Das, learned counsel for respondent ).2-!.C.I.C.i. Lombard General Insurance Company Limited the impugned award passed by the Tribunal. In support of his arguments, he has placed reliance on the decision of High Court of Karnataka at Bangalore In the matter of Harkhii

7. 1 have heard learned counsel for the parties, perused the record and the impugned avt'ard ofthe Tribunal. A bare perusal of the record goes to show that applicant has received payment of Rs.17,715/- against the claimed amount of Rs.29,857/- from the insurer of his vehicle in respect of extensive (AW/1) has is true that he received a sum of darnage caused to his vehicle. specifically stated that Sunil Bajaj Rs.17,715/- as compensation from his Insurance Company, thereafter he put his signature in the voucher and received the acknowledgment thereof. He has aiso stated that he could not see whether the words 'ful! and fm3l settfement' regarding payment were written in the voucher or not. Ajit Pandey (AW/2) has stated in his deposition that Tavera Car of appilcant Sunil Bajaj came for repairing to his garage namely Vardhaman Motors. He has also stated that bill (Ex.P/8).and acknowledge (Ex.P/9) were signed by the owner of Vardhaman Thus, Motors. repaired and payment made to vehicle of applicant got Vardhaman Motors and acknowledgment thereof has been from the above evidence, is clear that

9. Now, the question remains to be seen in this case is that whether the claim petition filed by the applicant is maintainable or not. From the evidence of applicant Sunil Bajaj (AW/1) wherein he .'2007ACJ(3)2089 2 2005 ACJ (2) 1332 has stated in his cross-examination that he cou!d not see whether the words 'full and final settlement' regarding payment were written in the voucher or not. He has also stated that it is true that he has not received the voucher issued by the Insurance Company under protest reserving the right to recover the balance Thus, from She above amount after assessment of the claim. statement of claimant, it cannot be said that amount of Rs.17,715/- paid by Company was not under ful! and final settlement of the claim. insurer of his vehicle i.e., Insurance Further, in view of the above, burden to prove the claim petition lies on the applicant/appellant whereas neither he proved hls cass by oral or documentary evidence that the award is received in respect of his claim from the Insurance as part payment Company nor is able to prove that his case is maintainable under the law. Thus, it cannot be said that the payment of Rs.17,715/- made by Insurance Company of his vehicle is part payment In respect of his claim. .The question whether the claim petition filed by the claimant before the Tribunal for compensation from the insurer of the offending vehicle, after receiving the payment for extensive damage caused to the vehicle from tnsurance Company with which the vehicle was insured, is maintainable, came up for consideration before the Karnataka High Court in the case of v ~-

10. "6. Harkhu Ba'i fSuprs), wherein it was observed in para 6 as under: That leaves us with the claim in M.V.C.No.3 of 1990. The Tribunal has rejected the said claim on two grounds. Firstty, because no negligence on fhe part of the offending vehicle is proved and secondty, because the claimant, the vehicle, has already received from the owner of insurance company with which the vehicle was insured an amount representing the loss suffered by him. While the finding on the first of the said question has been reversed by us, we see no reason to interfere with the view taken by the Ttibuna! on the second quesffon. It is not in dispute that fhe vehicle owned by the ctaimant in M.V.C.No. 3 of 1990 had suffered extensive damage on account of the collision but is also admitced that the vehicle being insured with one of the other snsurance companies, damage was assessed and paid. The order passed by the Thbunal further shows that .the payment was recesved by , NSISN^aWI®SI^^I^^^ '"y .^•B-T<»t^ "% ,^1^4, /./""^ :i 'v^^y | '''!.. .. JJ 'WsSSWn '"SSSSsa^ the claimant in full and final settiement of his claim without In the absence of any material any reservation or demur. Insurance to show that company represented a part only of the total damage, the Tribunal was justified in rejecting the claim for any further payment. We, therefore, see no merit in the appeal filed by the owner which shall have to be dismissed." the claim paid by the other 11 ^. In the instant case, appellant has utterly failed to prove the fact that claim amount paid by the insurer of his vehicle was part payment and not full and final sett!ement and view taken in the matter Harkhu Bai (Supra) that "In the absence ofany msteria! to show that insurance company the ciaim paid by the other the Tiibunal was represented a part only of the total damage, justified in rejecting the claim for any further payment." specific to this extent. The question regarding misquoting and misinterpreting the judgment Hanumanthappa (Supra) concemed, in that case the ciaim petition was remitted to the in the instant case the for a fresh consideration but Tribunal is very Tribunal lias decided the matter finally on merit after taking evidence. Thus, the facts and circumstances of the present case are entlreiy different from the facts of Hanumanthappa (Supra). Having considered all the facts and circumstances of the case and

12. in view of the !aw iaid down in the matter of Harkhu Bai (supra), am ofthe considered opinion that the Tribunai has rightly dismissed 1 the claim petition of ility, which does not call the appeilant/claimant on She ground of for any interference in this

13. Accordingly, the appeal filed by the appellant/clalmant is iiable to be dismissed and is hereby dismissed. No order as to costs. _ _ _ „ .__ _ - Sd/- Rangnath Chandrakar Judge Vijay